Ethanol Blog

LINCOLN, Neb. (DTN) -- The states of Nebraska and Iowa asked a federal court on Wednesday to force the EPA to finalize a rule allowing permanent E15 sales in eight Midwest states. The two states argued in a motion for summary judgment that the agency is required to grant their requests and has failed to act.

E15 is a fuel that contains 10.5% to 15% ethanol and 85% gasoline.

On April 28, 2022, eight state governors requested a change allowed by the Clean Air Act to reject the use of the 1-psi waiver for E10, composed of 10% ethanol and 90% gasoline, in their states.

This would result in applying the same volatility limitation to both E15 and E10 -- essentially putting E10 and E15 on the same footing in those states beginning in 2024. The eight states include Illinois, Iowa, Minnesota, Missouri, Nebraska, Ohio, South Dakota and Wisconsin.

By law, EPA was required to set the waiver aside and to finalize a rule within 90 days of the request.

The states' motion, filed in the U.S. District Court for the District of Southern Iowa, asks the court to render a ruling in their favor based on the undisputed facts in the case.

"Now, more than 400 days later and more than a year after that 90-day period expired, EPA's continued delay risks yet another year without the fuels the governors requested -- and that they are entitled to under the act," the states said in their motion.

"Each day that this case continues, unresolved, is a day that EPA continues its now long-standing violation of the Clean Air Act."

Growth Energy CEO Emily Skor said in a statement the EPA's publicly stated reasons for not finalizing the states' request are without merit.

"They've been forced to return to court to compel EPA to do something it was required to have done by July 2022," she said.

"What's more, in its continued decision to illegally delay acting on the governors' request, EPA has cited fuel-distribution concerns that are greatly overstated and can likely be attributed to the oil industry using scare tactics to prevent consumers from getting greater access to a fuel that costs less, burns cleaner, and displaces their products with every gallon."

Skor said biofuels interests in Nebraska and Iowa have "been more than patient" with the agency.

Since 2022, EPA has been contacted by a coalition of state attorneys general asking the agency to complete the rulemaking. That was followed by an intent to sue announced by Iowa and Nebraska.

"EPA responded by starting the rulemaking process, proposing a rule that would grant the states' requested waiver, and opened notice and comment," the motion said.

"Yet the process then ground to a halt. And despite the comment period's closing and no meaningful pushback on EPA's rule, EPA has failed to publish its proposed rule."

Nebraska and Iowa have asked the court to issue a permanent injunction to require the EPA to promulgate a final rule "promptly by a date certain, and that date should be as promptly as practicable."

The Biden administration announced on March 1, 2023, that it was granting the petitions filed by the eight states.

As part of the process of filing petitions with the EPA, each state had to provide data to support their requests, including how E15's permanent availability would help improve air quality, among other issues.

"Indeed, EPA has taken no meaningful action to remedy the problems identified by the governors despite EPA's own models' projecting that lack of a waiver will continue to cause increased emissions in the states," Iowa and Nebraska said in its motion.

"Ad hoc emergency waivers issued by EPA only partially fix the problems -- without ample lead time for refiners to ensure access to the correct fuel and E15, there will be insufficient supplies for the upcoming summer season."

The Biden administration granted a temporary waiver last summer allowing E15 sales to continue from June to September.

Members of Congress have put forward legislative proposals to allow for year-round E15 sales across the country. Without legislative action, however, presidential administrations will be asked annually to grant temporary waivers.

Iowa and Nebraska make the case in the motion that EPA's lack of action is harming the public interest.

"EPA's failure to follow the act will also cause irreparable harm to the public health and welfare of millions of residents in Iowa and Nebraska," the states told the court.

"Plaintiffs have a sovereign duty and responsibility to protect the health and welfare of their residents and quality of their environments. Yet EPA's failure to promulgate a final rule forces their residents to continue to breathe air with additional, avoidable emissions. Until EPA finalizes its rules, plaintiffs are denied section 211(h)'s relief and face unlawful delays in providing their residents the E15 fuel that will best serve their air quality and pocketbooks."

Read more on DTN:

"Nebraska, Iowa Sue EPA on E15 Request," https://www.dtnpf.com/…

Todd Neeley can be reached at todd.neeley@dtn.com.

Follow him on X, formerly known as Twitter, @DTNeeley.

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